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Criminal Law Conference 2019, Jointly Organised by the Department of Justice, the Hong Kong Bar Association and the Law Society of Hong Kong

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Criminal Law Conference 2019, Jointly Organised by the Department of Justice, the Hong Kong Bar Association and the Law Society of Hong Kong Welcome to CGO Conference Hall 2/F, Central Government Offices 2 Tim Mei Avenue, Tamar, Hong Kong 25 May 2019 (Saturday) CONTENTS Welcome Messages From the Secretary for Justice 2 From the Director of Public Prosecutions 3 From the Chairman of the Hong Kong Bar Association 4 From the President of the Law Society of Hong Kong 5 Special Guests 6 Conference Programme 8 Reference Papers Reference paper on topic 1 10 Review of sexual offences – Does the Goldilocks principle work? Reference paper on topic 2 22 Computer crimes: Is the existing law in Hong Kong sufficient to tackle crimes committed in cyberspace or by means of computer technology? Impact of the judgment in SJ v Cheng Ka Yee & Others [2019] HKCFA 9 on section 161 of the Crimes Ordinance, Cap. 200. Any international experience in the investigation and prosecution of cybercrimes that can be shared? Reference paper on topic 3 32 Money laundering, restraint and confiscation: The law in Hong Kong after Carson Yeung and Salim Majed. In money laundering cases, what are the “proceeds of crime” which are liable to be confiscated? Is civil forfeiture (e.g. unexplained wealth orders under the Criminal Finances Act 2017) a viable model for Hong Kong? Reference paper on topic 4 42 The future of Hong Kong’s anti-human trafficking laws Acknowledgements 56 1 Welcome Messages Welcome Message from The Secretary for Justice Ms Teresa Cheng, GBS, SC, JP I welcome you all to the Criminal Law Conference 2019, jointly organised by the Department of Justice, the Hong Kong Bar Association and the Law Society of Hong Kong. I would like to particularly extend a warm welcome to all overseas delegates including those from member states of the Association of Southeast Asian Nations. As in the previous runs of this conference series, we are privileged to have two very distinguished jurists from other common law jurisdictions joining us as our special guests and sharing with us their invaluable insights and experience. As globalisation takes form, challenges for prosecutors and law enforcers continue to arise. Many crimes, such as cybercrimes, money laundering and human trafficking, now inevitably transcend borders. Different jurisdictions have come closer than ever to tackle cross-border crimes and also to exchange ideas and experience on issues that are faced domestically, including sexual offences. This Conference can facilitate intellectual exchanges of professional knowledge and sharing of practical experience. I trust that the discussions will be thought-provoking and greatly benefit Hong Kong and hopefully the home jurisdictions of the overseas participants as well. Hong Kong is always ready for taking an active role in furthering international and regional collaborations, thereby helping to develop the criminal justice systems and enhance the rule of law in the region and beyond. Our criminal justice system is at the very core of the rule of law of Hong Kong, in which we take great pride. The Department of Justice continues to be committed to upholding the rule of law at the highest professional standard. We are constantly mindful of the huge impacts of prosecutorial decisions on the individuals and families concerned as well as the society as a whole. Ultimately, they serve the public interest and have to be made independently, professionally, and without fear or favour. This conference series, with the fifth run in this year, is timely for us to reflect on our criminal law regime amid our constant quest for improvement of our criminal justice system. I would like to thank our co-organisers, the Director of Public Prosecutions and our colleagues of the Prosecutions Division for their hard work and dedication in making this year’s Conference another great success. 2 Welcome Message from The Director of Public Prosecutions David Leung, SC I welcome you all to the Criminal Law Conference 2019, the 5th in the series, jointly organised by the Prosecutions Division of the Department of Justice, the Hong Kong Bar Association and the Law Society of Hong Kong. Criminal justice is the cornerstone of a modern and vibrant society. It must be fair, efficient, effective and transparent. It must also evolve with the times. Since 2012, the Criminal Law Conference has been an effective platform facilitating intellectual discussions and sincere sharing amongst veteran practitioners, academics and stakeholders where a wide range of topics of common interest are visited and explored. I am pleased to see that our continuous effort to nurture this platform has gained encouraging support from all. First, today we are honoured to have two distinguished guests, namely, Lady Justice Hallett, Vice President of the English Court of Appeal Criminal Division and Ms Julie Read, Chief Executive and Director of the New Zealand Serious Fraud Office with us to share their invaluable insights and experience on the topics to be discussed. Second, we are also honoured to welcome delegates from member states of the Association of Southeast Asian Nations (ASEAN), who share with us the common goal of achieving better cooperation, development and administration of criminal justice in the region. As for myself, as a participant of all of the previous Conferences, I have always treasured the opportunity to share and exchange views with our distinguished guests, panel speakers and participants at this meaningful event and I will certainly continue to do so this year. I hope all of you will enjoy this year’s Conference and find it useful. I look forward to this year’s Conference topics sparking productive discussions and honest and in-depth exchanges between speakers and participants. Lastly, I must also thank the two professional bodies and our colleagues, to which I am heavily indebted, for joining me in hosting this meaningful event. Thank you and please enjoy the Conference. 3 Welcome Messages Welcome Message from Hong Kong Bar Association Philip Dykes, SC Chairman On behalf of the Bar Association, I welcome you all to the Criminal Law Conference 2019. This is the fifth Criminal Law Conference to be held since 2012. The Department of Justice hosts the event with the Bar Association and the Law Society acting as co-organizers. As with previous conferences, there will be a rich blend of practitioners from both the public and private sectors with contributions from the judiciary. The topics that have been selected for discussion at the Conference reflect some current concerns and are a reminder that the law needs to keep abreast of changes in society and developments in technology if it is to be fit for purpose in this day and age. The law can only remain current if judges and practitioners attend conferences like this one and enter into lively but measured debate on topical issues. I look forward to meeting many of you at the Conference. 4 Welcome Message from The Law Society of Hong Kong Melissa Pang President I welcome you to the Criminal Law Conference 2019. Criminal law in Hong Kong has been evolving relatively rapidly in the past few years. Just when I am preparing this message, I note with keen interest the publication of a report by the Law Reform Commission of Hong Kong on voyeurism and non-consensual upskirt-photography. The Commission is recommending the introduction of a new and specific offence of voyeurism to deal with an act of non-consensual observation or visual recording (for example, a photograph, videotape, or digital image) of another person for a sexual purpose; and a new and specific offence in respect of non-consensual upskirt-photography. The need for this sexual offences reform is apparent, in the light of the Court of Final Appeal’s recent ruling that prosecutors can no longer apply the charge of “obtaining access to a computer with a view to dishonest gain” to the use of a person’s own smart-phone or computer. In our submission to the Law Reform Commission in July 2018, we already invited the Commission to consider creating a new offence of upskirt photograph for sexual gratification, by reference to comparable legislation in Scotland and in the UK. With the latest court judgment, serious and urgent consideration must be given to updating our legislation to ensure the criminal justice system in Hong Kong continues to be effective, efficient, and to ensure it upholds the rule of law. The first and the second topics for the Conference of this year, respectively on sexual offences reform and on computer crimes, are therefore well-timed and aptly chosen. As for the other topics for the Conference, equally they receive much attention in the wake of various court decisions and judgments. For the third topic, distinguished speakers will discuss the latest developments in money laundering offences, after the Court of Final Appeal has clarified various difficult issues in this aspect. Certainly those will have significant impacts on the way money laundering cases are prosecuted and defended in the future. As for trafficking in persons (i.e. the fourth topic), there has already been much deliberation in the public on for example enactment of modern slavery law and criminalization of all forms of human trafficking. Our Court of Appeal on the other hand has examined the obligations of the HKSAR Government in handling cases of trafficking in persons in a landmark judgment. The Conference this year is the fifth of its series. It follows the success of the previous conferences and has now become an important event for criminal law practitioners. It is a platform where members of the Judiciary, practitioners and academia can share and exchange views on topical and important criminal law practice issues. The Conference is very much well-received. I am told that this year’s Conference has been fully-subscribed soon after it has been launched.
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